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2022 DIGILAW 1223 (GAU)

Lalthangliana v. State of Mizoram

2022-11-04

MARLI VANKUNG

body2022
JUDGMENT : Heard Mr. Johny L. Tochhawng, learned Amicus Curiae alongwith Mr. C. Zoramchhana, learned Public Prosecutor for the State respondent. 2. This is a Jail appeal against the Judgment and Order dated 26.07.2019 passed by the learned Judge, Special Court, POCSO Act, Aizawl Judicial District, Champhai in Sessions Case No. 78/2015 arising out of Criminal Trial No. 1142/2015, vide CPI PS Case No. 158/2014 dated 08.12.2014 under Section 4 of the POCSO Act. 3. The appellant was convicted under Section 4 of the POCSO Act and sentenced to undergo Rigorous Imprisonment for 7 years and to pay a fine of Rs. 5000/-, in default, Rigorous Imprisonment for one month vide, its Sentence Order dated 09.08.2019. 4. Brief facts of the case is that on 08.12.2014, one Mr. V.L. Chama Hnamte, Chairman, Child Welfare Committee, Champhai District submitted a written First Information Report (FIR) to the Champhai Police Station to the effect that one minor girl aged about 11 years was sexually assaulted by Mr. Lalthangliana/the appellant. As the mother and the appellant, who is the stepfather of the girl are both alcoholics, there was no one to submit the FIR and therefore, the complainant on being informed about the incident, had filed the FIR for taking necessary action. A case was duly registered vide Case No. CPI/PS Case No. 158/2014 under Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act) against the appellant R/o Hnahlan Village, Champhai District. During investigation of the case, the case I.O examined the complainant and other witnesses; he visited the place of occurrence, seized the birth certificate of the prosecutrix and sent the prosecutrix for medical examination. She was also sent to the District Court, Champhai for recording her judicial statement. The case I.O. arrested the appellant and sent him to the Medical Officer for medical examination as per the requirement under Section 54 CrPC. On interrogation of the appellant and on perusal of the other evidences collected, the case I.O found prima facie case against the appellant under Section 4 of the POCSO Act and submitted the charge sheet. 5. The learned Judge, Special Court, POCSO Act framed charge against the accused under Section 4 of POCSO Act on 08.12.2015 to which the appellant pleaded not guilty and claimed for trial. The learned Trial Court examined as many as three(3) prosecution witnesses. 5. The learned Judge, Special Court, POCSO Act framed charge against the accused under Section 4 of POCSO Act on 08.12.2015 to which the appellant pleaded not guilty and claimed for trial. The learned Trial Court examined as many as three(3) prosecution witnesses. The accused was examined under Section 313 CrPC, wherein he denied all the evidence adduced against him and denied sexually molesting his stepdaughter/prosecutrix. After hearing both the parties, the learned Trial Court passed the impugned Judgment and Order dated 26.07.2019 and the Sentence Order dated 09.08.2019. Aggrieved, the appellant has filed the instant Jail appeal. 6. Mr. Johny L. Tochhawng, learned Amicus Curiae submits that the Judgment and Order dated 26.07.2019 passed by the learned Judge, Special Court, POCSO Act is liable to be quashed and set aside for the reasons that there was a delay in filing the FIR for which no explanation was given whatsoever. He further submits that there is discrepancy in the deposition of the witnesses with regard to the place of occurrence. From the evidence on record, PW1 mentioned that the place of occurrence was at Serchhip and Hnahlan whereas PW4 and PW5 mentioned that the place of occurrence was at Hnahlan and Champhai. 7. The learned Amicus curiae also submits that the doctor, who conducted the medical examination of the victim girl/prosecutrix did not depose in the Court to prove the medical examination report of the prosecutrix and mere exhibit of a document will not prove the contents of the document and thus the appellant is entitled to get the benefit of doubt since the medical report has not been proved. 8. The learned Amicus Curiae further mentioned that the testimony of the victim girl/prosecutrix does not inspire confidence since he has not mentioned the date and time when the appellant was supposed to have allegedly sexually molested her. From the testimony of the prosecutrix, she has mentioned that her younger brother and sister were at home when the appellant was supposed to have had forceful sexual intercourse with her. However, the younger brother and sister of the prosecutrix have not been produced as witnesses. 9. The learned Amicus Curiae further submits that the prosecutrix on cross examination stated that she had told her mother about the incident the next morning. However, the mother of the prosecutrix has not made as a prosecution witness in this case. However, the younger brother and sister of the prosecutrix have not been produced as witnesses. 9. The learned Amicus Curiae further submits that the prosecutrix on cross examination stated that she had told her mother about the incident the next morning. However, the mother of the prosecutrix has not made as a prosecution witness in this case. For the above reason, the testimony of the prosecutrix cannot be relied upon and there is no evidence that collaborate with her with the deposition of the appellant. Under such circumstance, the appellant may be given the benefit of doubt and release henceforth by setting aside the impugned Judgment and Order dated 29.07.2019. The learned Amicus Curiae in support of his submission has relied on the judgment of the Hon’ble Supreme Court in the case of K.P. ThimmappaGowda Vs. State of Karnataka reported in (2011) 14 SCC 475 and a decision of this court in Case No. Crl.A(j)/2018 dated 18.05.2019 in Md. Nazimuddin Laskar versus State of Assam. 10. Mr. C. Zoramchhana, learned Public Prosecutor on the other hand submits that the truthfulness of the testimony of the prosecutrix is not to be doubted since the prosecutrix has no reason to falsely implicate the appellant who is also her stepfather. It can be understood that the mother of the prosecutrix was not made a prosecution witness since she is married to the appellant/stepfather of the victim/prosecutrix. The delay in submitting the FIR has been clearly explained in the FIR itself, wherein it was stated that the appellant and the mother of the prosecutrix are both in the habit of drinking alcohol and were not willing to take the responsibility of filing the FIR, thereafter, the Chairman, Child Welfare Committee filed the FIR once he came to know about the incident. 11. The learned Public Prosecutor further submits that the discrepancy in the place of occurrence as pointed out by the learned Amicus Curiae is one insignificant discrepancy since the case I.O and the victim girl both have clarified that the place of occurrence was at Hnahlan and Champhai Venglai. Non-examination of the Medical Doctor will not vitiate the case since the medical examination report is an official document and need not be proved. 12. Non-examination of the Medical Doctor will not vitiate the case since the medical examination report is an official document and need not be proved. 12. The learned Public Prosecutor further submits that in rape case the Apex court has in a number of cases held that the sole testimony of the victim would be sufficient to convict the accused if her testimony inspires confidences and that seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. 13. The learned Public Prosecutor in support of his submission has relied on the Judgments of the Apex Court in the case of (i) Ganesan Vs. State Represented by its Inspector of Police reported in (2020) 10 SCC 573 , (ii) State of Himachal Pradesh Vs. Sanjay Kumar Alias Sunny reported in (2017) 2 SCC 51 , (iii) State of Uttar Pradesh Vs. ChhoteyLal reported in (2011) 2 SCC 550 . 14. I have heard the submissions made by both the parties and perused the evidence on record. The evidence of the prosecution witnesses is discussed herein; 15. PW1 is the informant who states that during the year 2014, he was the Chairman of Child Welfare Committee, Champhai District. They had received information from Hnahlan that the victim/ prosecutrix was sexually assaulted by her step-father. They sent their protection officer to Hnahlan to inquire about the incident. The victim was brought to Champhai and when they questioned her she told them that her father had sexually assaulted her about two times at Serchhip and Champhai but she could not tell the dates and time. They called the mother of the victim/prosecutrix but she did not appear before them so he had submitted the FIR. I am of the considered view that any delay in submitting the FIR has been satisfactorily explained from the deposition of PW1. It is also seen that on perusal of the contents of the FIR exhibited as that the appellant/ step father of the prosecutrix and the mother of the prosecutrix are in the habit of consuming liquor and were not inclined to file the FIR. It is also seen that on perusal of the contents of the FIR exhibited as that the appellant/ step father of the prosecutrix and the mother of the prosecutrix are in the habit of consuming liquor and were not inclined to file the FIR. Nothing was asked in the cross examination to refute this. 16. PW2 is the Dentist who had examined the victim /prosecutrix to determine her age and he opined that she was around 12-14 yrs. The fact that the prosecutrix was a minor and aged around 12-14 years was not challenged by the defence. 17. PW3 is the case I.O, who deposed of the steps he took on being endorsed to investigate of the case. He visited the P.O (place of occurrence, examined the victim and other witnesses and also interrogated the appellant. The prosecutrix told him that the appellant accused had raped her twice, first time at Champhai Venglai and the second at Hnahlan. She could not remember the time or dates. The accused /appellant denied the charge and stated that he used to fondle the victim out of affection and did not have any sexual intent towards her. He sent the victim for medical examination and sent her to the Magistrate to record her statement under 164 Cr.PC. He also sent her to the dentist for determination of her age. Her birth certificate was also seized and find prima facie case against the accused/appellant under section 376(2)(i) IPC r/w Section 4 POCSO Act and submitted the charge sheet for the accused to face his trial. 18. PW4 is the victim/prosecutrix who stated that the appellant/accused was her stepfather. She stated that she was staying in a Shelter home and was also studying in standard 5. In the year 2014, one night while they were in there house with her brother and sister and her mother was not in the house, when the accused appellant came home and had forceful intercourse with her. The second time was that Hnahlan and her mother was again not at home. On cross examination she stated that the accused appellant had made her remove her underwear when he raped her, and she also stated that she told her mother about the incident. On cross examination she had also stated that she cried in pain when the appellant had sexually assaulted her. On cross examination she stated that the accused appellant had made her remove her underwear when he raped her, and she also stated that she told her mother about the incident. On cross examination she had also stated that she cried in pain when the appellant had sexually assaulted her. The truthfulness of her testimony was not shaken during her cross examination. 19. On examination of the accused appellant under Section 313 Cr.P.C, he has denied the charge of sexually assaulting the victim prosecutrix. 20. The Apex Court in a catena of its Judgments has held as in the case of State Of Himachal Pradesh vs Sanjay Kumar Alias Sunny (supra) that:- “31. …….. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance {See Bhupinder Sharma v. State of Himachal Pradesh}. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance {See Bhupinder Sharma v. State of Himachal Pradesh}. Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.” 21. Supreme Court of India in State Of M.P vs. Dayal Sahu on 29 September, 2005 held that: “A plethora of decisions by this Court as referred to above would show that once the statement of prosecutrix inspires confidence and accepted by the courts as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. It is also noticed that minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. Non-examination of doctor and non-production of doctor's report would not cause fatal to the prosecution case, if the statements of the prosecutrix and other prosecution witnesses inspire confidence. It is also noticed that the Court while acquitting the accused on benefit of doubt should be cautious to see that the doubt should be a reasonable doubt and it should not reverse the findings of the guilt on the basis of irrelevant circumstances or mere technicalities. Reverting back to the facts of the case, the testimony of prosecutrix-PW.1 that she has been ravished by the accused at 4.00 A.M. on 1.4.1991 remains unimpeached. She was subjected to cross-examination but nothing could be elicited to demolish the statement-in-chief. Her statement was corroborated by the statements of PWs 2, 4 and 5 in material particular, coupled with FSL report Ex.P-8 and Ex.P-9, which has been accepted by the Trial Court and even by the High Court. The High Court was totally erred in law in recording the acquittal of the accused by giving him benefit of doubt for non-examination of doctor, thereby committed grave miscarriage of justice.” 22. The High Court was totally erred in law in recording the acquittal of the accused by giving him benefit of doubt for non-examination of doctor, thereby committed grave miscarriage of justice.” 22. In the case of State of Punjab vs. Gurmit Singh, (1996) 2 SCC 384 , it has been held that- “a conviction can be founded on the testimony of prosecutrix alone unless there are compelling reasons for seeking corroboration. It is further held that her evidence is more reliable than that of an injured witness.” It was pointed out as under:- "The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind a probable". 23. In State of M.P v. Dayal Sahu, reported in (2005) 8 SCC 122 , it was held that non-examination of doctor in a case of rape is not always fatal to the prosecution when the testimony of the prosecutrix inspires confidence of the Court and non-production of doctor's report is not at all fatal. 24. 23. In State of M.P v. Dayal Sahu, reported in (2005) 8 SCC 122 , it was held that non-examination of doctor in a case of rape is not always fatal to the prosecution when the testimony of the prosecutrix inspires confidence of the Court and non-production of doctor's report is not at all fatal. 24. In light of the above decisions of the Apex Court, on perusal of the prosecution evidence, it is also seen that the victim prosecutrix is not able to tell the date or time when the appellant had raped her however she remembers that once it was at Champhai Vanglai and the second time it was at Hnahlan. The statement of the victim prosecutrix recorded under section 164 Cr.P.C is also not enclosed with the charge sheet, however, what she has stated is the same as her statement she made before the case I.O as confirmed by the case I.O in his deposition. On cross examination of the prosecutrix there was nothing to shake the credibility and truthfulness of the simple testimony of the prosecutrix. Thus for the above reasons, this Court is of the considered opinion that even if the medical doctor was not examined wherein the medical report was made a part of the charge sheet which indicates that the hymen was absent this would not vitiate the prosecution case. 25. For the above reasons, this Court finds no reason to interfere with Judgment & Order dated 26.07.2019 passed by the learned Judge, Special Court POCSO convicting the appellant under Section 4 POCSO and sentencing him to undergo R.I 7 (seven years) with fine of Rs.5000/-in default S.I. one month. 26. Accordingly, the appeal petition in Crl. A (J) No. 40 of 2019 is dismissed and stands disposed of. 27. In appreciation of the services rendered by the learned Amicus Curiae, the State Legal Services Authority shall pay him a fee of Rs.7500/-(Rupees Seven thousand five hundred) only, to be paid by the Mizoram State Legal Services Authority.